‘We Don’t Put Our First Amendment Rights In the Hands of FEC Bureaucrats’
I (and several colleagues) have blogged before about Citizens United v. Federal Election Commission, the latest campaign finance case, which was argued this morning at the Supreme Court. The case is about much more than whether a corporation can release a movie about a political candidate during an election campaign. Indeed, it goes to the very heart of the First Amendment, which was specifically created to protect political speech—the kind most in danger of being censored by politicians looking to limit the appeal of threatening candidates and ideas.
After all, hard-hitting political speech is something the First Amendment’s authors experienced firsthand. They knew very well what they were doing in choosing free and vigorous debate over government-filtered pablum. Moreover, persons of modest means often pool their resources to speak through ideological associations like Citizens United. That speech too should not be silenced because of nebulous concerns about “level playing fields” and speculation over the “appearance of corruption.” The First Amendment simply does not permit the government to handicap speakers based on their wealth, or ration speech in a quixotic attempt to equalize public debate: Thankfully, we do not live in the world of Kurt Vonnegut’s Harrison Bergeron!
A few surprises came out of today’s hearing, but not regarding the ultimate outcome of this case. It is now starkly clear that the Court will rule 5-4 to strike down the FEC’s attempt to regulate the Hillary Clinton movie (and advertisements for it). Indeed, Solicitor General Elena Kagan — in her inaugural argument in any court — all but conceded that independent movies are not electioneering communications subject to campaign finance laws. And she reversed the government’s earlier position that even books could be banned if they expressly supported or opposed a candidate! (She went on to also reverse the government’s position on two other key points: whether nonprofit corporations (and perhaps small enterprises) could be treated differently than large for-profit business, and what the government’s compelling interest was in prohibiting corporations from using general treasury funds on independent political speech.)
Ted Olson, arguing for Citizens United, quickly recognized that he had his five votes, and so pushed for a broader opinion. That is, the larger — and more interesting — question is whether the Court will throw out altogether its 16-year-old proscription on corporations and unions spending their general treasury funds on political speech. Given the vehement opposition to campaign finance laws often expressed by Justices Scalia, Kennedy, and Thomas, all eyes were on Chief Justice Roberts and Justice Alito, in whose jurisprudence some have seen signs of judicial “minimalism.” The Chief Justice’s hostility to the government’s argument — “we don’t put our First Amendment rights in the hands of FEC bureaucrats” — and Justice Alito’s skepticism about the weight of the two precedents at issue leads me to believe that there’s a strong likelihood we’ll have a decision that sweeps aside yet another cornerstone of the speech-restricting campaign finance regime.
Filed under: Government and Politics; Law and Civil Liberties
Responses to My Comments About Sotomayor
As might be expected, I have received much email responding to my CNN.com commentary about Obama’s Supreme Court pick. Some of it has been favorable, some less so (and some simply incoherent). One particular email covered most if not all concerns — and quite thoughtfully at that — so I thought I would share this exchange with a reader who emailed me his comments:
I read your piece “Sotomayor Pick Not Based on Merit”, where you write, “in over 10 years on the Second Circuit, she has not issued any important decisions”.
Granted that I’m a layman, not a legal scholar or anything – this list seems quite impressive, and, as a whole, pretty non-ideological.
In reviewing this list, I found myself disagreeing with her here and there, but I couldn’t find something that really irked me. Can you?
According to the authors, “Since joining the Second Circuit in 1998, Sotomayor has authored over 150 opinions, addressing a wide range of issues, in civil cases.” And that “To date, two of these decisions have been overturned by the Supreme Court; a third is under review and likely to be reversed.” 2 out of over 150, is not a bad record at all.
You also write that she’s “far less qualified for a seat on the Supreme Court than Judges Diane Wood and Merrick Garland or Solicitor General Elena Kagan.”
I did a bit of research on them, and I’m not sure why you reached that conclusion. They are all qualified, in some respects Wood and Kagan are a bit more impressive, but you give the impression that she’s not highly qualified, and I don’t see evidence for that. On the contrary, she seems highly qualified – she has a long judicial and academic record, she has dealt with a myriad of issues, and has authored a vast amount of rulings, which, as far as I’ve seen, don’t appear to be ideological or particularly “activist.” She strikes me as someone balanced and sensible, with a slight tilt to the left.
You also write, “this does not a mean that Sotomayor is unqualified to be a judge — or less qualified to be a Supreme Court justice than, say, Harriet Miers” – but, c’mon, how can you even compare her to Miers? Miers was truly unqualified. She’s hardly intellectually impressive in any way, to put it mildly, and nothing about her record was impressive or even remotely suggesting she’s qualified to serve as a Justice. She was basically a manager of a law firm, with zero qualifications to serve as a SC justice. By even mentioning her name while discussing Sotomayor, you’re giving the impression there’s an analogy there, where there’s really none. Sotomayor is light-years ahead of Miers. You can’t be serious.
You also make a big issue over Ricci v. DeStefano. Well, I personally would side with the firemen, and it’s unfortunate that Sotomayor hasn’t, but to be fair, she hasn’t even written a decision about that.
We don’t know what her reasoning was. She merely signed, along with the rest of the panel, to uphold the lower court’s decision. It’s hard to build an entire case against her based on something like that. She has written over 150 other decisions, why not focus on them? Why pick one, that doesn’t even have any arguments in it, and make it the central issue, when there are over 150 reasoned decisions to analyze?
Why not review them, and give the public a deeper assessment, rather than focusing on ONE, which doesn’t even have any arguments or reasoning in it?I’m generally a Cato fan, I get the mailings every day, I’m a moderate libertarian by philosophy, I’m just not sure why Cato is opposing her nomination. I like to think of Cato as non-partisan, just as I am, but on this issue your and Pilon’s opposition/criticism smacks from political partisanship and is not based on the evidence. So it seems to me.
Thanks for reading.
Here is my response:
Thanks for writing and for the thoughtful comments. A few points:
1. My argument is explicitly NOT that her opinions are disagreeable. I’ve waded through a fair number and read every public report on them produced thus far (including the very helpful SCOTUSblog summary you cite). Like you, some I agree with — most, actually, because most cases at this intermediate appellate level are not controversial (legally or politically), even if complex — some I don’t. But there’s just not much “there” there — intellectual depth, scholarly merit, etc. — at least by the elevated standards for elevation to the Supreme Court and in comparison to more accomplished jurists like Wood and Garland. She’s a competent judge, but we have 500 of those in the federal judiciary alone. (And none of this is to disparage her tremendous personal story; I write this from Princeton, where she had a truly impressive four years.)
2. Her reversal rate (I think there are six cases now) is a non-issue. The Supreme Court reverses over 60% of cases it hears and hears fewer than 2% of cases it is asked to review. So, statistically, we can say nothing about Sotomayor in that sense. A couple of her reversals are a bit strange, but on technical issues that, again, don’t lend much to the overall debate.
3. Yes, she’s much more qualified than Miers (though it’s a little unfair to say Miers was a mere “law firm manager” — she was White House counsel and apparently a decent lawyer in private practice). I threw that line in there to show I can pick on Republican nominees too.
4. While Roger, whom I copy here, has discussed suspicions of Sotomayor’s activism or radicalness — and I think it’s clear she has more of those tendencies than Wood or Kagan — this is not the thrust of the my CNN commentary. We just can’t tell from her opinions, which are all over the map — other than the speeches at Berkely and Duke and then the Ricci case.
5. Ricci is important for two reasons: a) on the merits, the decision is blatant racial discrimination — and the Supreme Court looks likely to overturn Sotomayor’s panel; b) perhaps more importantly, the failure to grapple with the complex constitutional and statutory issues is a serious dereliction of judicial duty — as pointed out by Jose Cabranes in his dissent from denial of en banc rehearing. Regardless of the merits of the case, the way it was handled — as a per curiam summary affirmance released late on a Friday, meant to sweep the case under the rug — is outrageous. Sotomayor was 100% complicit in that.
6. In no way are my (or Roger’s) comments partisan. Cato’s interest here isn’t in any particular personality but rather: 1) that official appointments be made irrespective of racial/ethnic/identity politics, and 2) even more importantly, that the Supreme Court interpret the Constitution in a way that treats the judicial enterprise not as one of enforcing social justice or otherwise rewriting the law it when a result is inconvenient. The talk of “empathy” is disturbing precisely because it is the antithesis of the rule of law. And this is why Republican Judiciary Committee members must generate a public debate on judicial philosophy and not merely attempt to tear down this nominee. If they don’t demand substantive answers on serious constitutional questions, they will be complicit in the deterioration of our confirmation processes.
All the best,
Ilya
I look forward to following and commenting further as the confirmation process plays itself out.
Handicapping the Justicial Horserace
The increase in chatter in Washington about Justice Souter’s replacement is a clear signal that pundits have gotten about as much mileage as they can over speculation and want to have an actual nominee to dissect.
Even though the administration has been evaluating candidates since the inauguration (and before), there’s no real reason for President Obama to announce a replacement before the Court’s term ends in late June.
The only limiting factor is that the president needs to have a new justice in place by the time the Court resumes hearing cases in October. So, clearly, this politically savvy president will be weighing his legislative priorities against the relative amount of political capital he’ll have to spend to confirm possible nominees. Similarly, Republicans seem to be keeping their powder dry, hopefully in preparation for a serious public debate of competing judicial philosophies and theories of constitutional interpretation.
As far as handicapping goes, the smart money is now on Solicitor General Elena Kagan—because she was recently confirmed by a comfortable margin, has significant support in the conservative legal establishment, and is young (49)—but don’t count out either Judge Diane Wood or Judge Sonia Sotomayor. Or dark horse candidates like Senator Claire McCaskill. It’s really any woman’s ballgame at this point, and will be until Barack Obama—who famously holds his cards close to his vest—announces his pick, on his time.
For a geometric discussion (X-axis = desirable criteria; Y-axis = confirmability) of the above political calculus, see here.
Filed under: Government and Politics; Law and Civil Liberties
Who Will Replace Justice Souter?
You could call it the end of an error. David Souter, the “stealth justice” who George H. W. Bush nominated mainly to avoid a confirmation battle and who so disappointed conservatives, is finally free to leave a city he never took to and return to his native New Hampshire.
Little more can be said about Justice Souter. He has always been inscrutable, at first leaning right, shifting toward the middle in the landmark 1992 cases of Planned Parenthood v. Casey (abortion) and Lee v. Weisman (prayer at high school graduation), and ending up at the left end of the Court alongside Justices Stevens, Ginsburg, and Breyer — all the while employing an unpredictable jurisprudential method. And he has always been reclusive, refusing reporters’ and scholars’ interview requests and being the biggest opponent of video cameras inside the Court. Perhaps most memorably, Souter gained notoriety after his vote in Kelo v. New London (allowing the taking of a private home for the benefit of a developer) spurred property rights activists to petition for the use of eminent domain to turn his farm into the “Lost Liberty Hotel.”
Speculation now turns to possible replacements, and what President Obama will do with his first chance to fill a seat on the high court. Will he risk a big political battle on this issue so early in his term, or will he appoint someone more confirmable but less pleasing to his base?
He is under great pressure to appoint a woman, and the three leading female candidates are new Solicitor General Elena Kagan, Second Circuit Judge Sonia Sotomayor, and Seventh Circuit Judge Diane Wood. Kagan would be an almost-certain pick a year from now, but having been just confirmed to be the so-called Tenth Justice, she might be seen as too green for elevation. Sotomayor — because she is Hispanic and despite a mixed judicial record — was the odds-on favorite until the Court took up the employment discrimination case of Ricci v. DeStefano (argued just last week), an appeal of a bizarre opinion Sotomayor joined that denied the claims of firefighters who had been passed over for promotion because of their race. That leaves Wood, a renowned authority on antitrust, international trade, and federal civil procedure, whose age (58) suggests that this is likely the last vacancy for which she will be considered. Wood offers a seriousness of purpose and no ideological ax to grind, and is thus the best nominee supporters of constitutionalism and the rule of law can hope for at this time. (Full disclosure: I took two classes from Judge Wood in law school.)
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